[00:00:02] Speaker 03: We have six cases on our calendar this morning. [00:00:06] Speaker 03: Four of them with the same appellant and appellee and other similarities. [00:00:16] Speaker 03: And we have two cases submitted on the briefs that will not be argued. [00:00:21] Speaker 03: One from the MSPB and one from the Court of Federal Claims. [00:00:26] Speaker 03: Our first is the Quartet, we might call them. [00:00:30] Speaker 03: WSOU Investments versus Google, 2022, 1063, Mr. Cummings. [00:00:39] Speaker 03: And I might suggest that while each of these cases has different patterns and some differences in claim limitations, there's some commonality with respect to the law and we ask that you not needlessly repeat what needn't be repeated. [00:01:00] Speaker 00: Of course, your honor. [00:01:02] Speaker 00: Good morning. [00:01:03] Speaker 00: May it please the court. [00:01:05] Speaker 00: The judgment of the district court should be reversed here because the trilogy of zero-click, DIFAN, and VDPP show that processors were in the prior art at the time of the invention. [00:01:21] Speaker 00: and are recognized by skill artisans as a name for structure. [00:01:26] Speaker 04: Are there different types of processors, and does it matter that this claim just says processor? [00:01:33] Speaker 00: Well, the specification shows that there are a lot of different types of processing structures that could be used to implement the invention. [00:01:44] Speaker 00: So the designer would choose an appropriate processor structure. [00:01:51] Speaker 00: And the specification lays out a number of different types of processor structures that those skilled in the art would understand could be used. [00:02:03] Speaker 04: So everybody knows what a CPU is, central processing unit. [00:02:09] Speaker 04: That's the heart of every computer. [00:02:11] Speaker 04: So everybody knows that. [00:02:14] Speaker 04: microprocessor is a commonly recognized term that is in every one of our iPhones. [00:02:23] Speaker 04: The claim just says processor. [00:02:27] Speaker 04: Does that matter? [00:02:29] Speaker 00: Well, it doesn't matter because the specification is clear that [00:02:34] Speaker 00: processor can be implemented using one of these different types of processors, and it specifically mentions a central processing unit. [00:02:46] Speaker 04: So you're arguing that the specification informs the structural nature of this? [00:02:52] Speaker 00: Exactly, to the extent that processor alone does not, which we argue processor does connote structure to one skilled in the art by itself, but certainly as explained in the specification with all of these different types of processors that can be used to implement processor, [00:03:15] Speaker 00: there's just no question that the processor in the claim is structural to us. [00:03:22] Speaker 03: The claim reads processor configured to. [00:03:27] Speaker 03: So it clearly implies that there must be some structure to make the processor carry out the function. [00:03:38] Speaker 03: And is there something in the record here? [00:03:40] Speaker 03: I don't think I saw it. [00:03:42] Speaker 03: that indicates that one skilled in the art would know exactly how to do this. [00:03:47] Speaker 00: Well, this court's cases are clear that if you recite a structure in the claim and its function, that's fine. [00:03:59] Speaker 00: So if processor is structural, configured to operate in a certain way is perfectly acceptable. [00:04:11] Speaker 00: As to [00:04:12] Speaker 00: the question of what level of detail does the specification have to disclose in order for that to be clear structurally. [00:04:26] Speaker 00: Processors have for decades displayed arrows and characters and words on a screen. [00:04:33] Speaker 00: That's a basic function that cases like BioMedino and [00:04:41] Speaker 00: aristocrats say, you don't need to include that level of detail of understanding of one skilled in the art. [00:04:50] Speaker 00: Otherwise, the specifications just become too unwieldy. [00:04:55] Speaker 01: Council, I want to ask you about the specification in particular. [00:05:00] Speaker 01: So in this case, the district court said that given the broad language at the top of column 13, that [00:05:10] Speaker 01: The specification treats the word processor so broadly as to be anything that manipulates data. [00:05:16] Speaker 01: And, you know, if I look at what's at, you know, say around lines 6 through 14 or so, it does seem to say that the processor can be hardware alone. [00:05:29] Speaker 01: It can be software. [00:05:31] Speaker 01: It can be a combination. [00:05:33] Speaker 01: You're right. [00:05:33] Speaker 01: It does say it can be a CPU or maybe a microprocessor. [00:05:36] Speaker 01: I don't remember which one. [00:05:38] Speaker 01: But the concern I'm having that I think the gist record had is that, yeah, sure, processor in some circumstances can be a very specific structure. [00:05:50] Speaker 01: But what do we do in this scenario where the specification basically says the processor can be anything that performs the function? [00:05:58] Speaker 01: And then why is that not then so broad that it should be treated as means plus function? [00:06:04] Speaker 01: And it's a little weird because, you know, we don't usually often go to the specification, have the specification say this term means anything. [00:06:12] Speaker 01: So, you know, that's informing the view. [00:06:16] Speaker 00: Well, what this really gets at is [00:06:19] Speaker 00: Really any processor that you use can have attached memory that will impact the operation of the processor. [00:06:31] Speaker 00: It can be in software or it can be in firmware, which is essentially just another type of software that's a little bit more permanent. [00:06:40] Speaker 00: They're just explaining here [00:06:42] Speaker 00: Not that it's so broad that there's no structure whatsoever. [00:06:46] Speaker 00: They're just explaining that there's different ways that you could take any one of these processing structures and implement it slightly differently to give you the flexibility that you need in your system so that it'll operate and can be updated. [00:07:05] Speaker 01: I understand. [00:07:05] Speaker 01: The concern I have is that the question is whether a processor is like a nonce word, whether it's a word that [00:07:11] Speaker 01: You know, where someone who's trying to figure out the scope of the claim can't figure out what it is. [00:07:19] Speaker 01: And here it says it can be in hardware alone, a circuit or microprocessor. [00:07:23] Speaker 01: It can be firmware. [00:07:24] Speaker 01: It can be a combination of hardware and software, including firmware. [00:07:27] Speaker 01: And then it also says it could be an executable computer program with instructions on a general purpose computer or a special purpose processing unit. [00:07:38] Speaker 01: I just, it's very broad. [00:07:40] Speaker 01: It's hard for me to figure out what the commonality in the structure is. [00:07:45] Speaker 00: Well, again, the firmware and the software that they're talking about here, it's just different ways of implementing the particular structure. [00:07:58] Speaker 00: choose a digital signal processor as your processing device and you'll need associated memory and firmware and the like to go along with it. [00:08:10] Speaker 00: They're just trying to explain here that there's different ways that you can configure the processing structure. [00:08:19] Speaker 01: But is the processing structure hardware? [00:08:21] Speaker 01: Is it software? [00:08:23] Speaker 01: Is it a combination of hardware and software? [00:08:26] Speaker 01: Is it anything that [00:08:29] Speaker 01: is in a digital system that can process something? [00:08:33] Speaker 01: What is the structure? [00:08:35] Speaker 00: Well, the structure can be hardware, and it lists particular hardware devices. [00:08:45] Speaker 00: Diphon says that software is a structure. [00:08:49] Speaker 03: Diphon involved different facts. [00:08:53] Speaker 03: That was reversed, if I recall, because there was [00:08:57] Speaker 03: evidence and expert testimony that wasn't reflected in the decision. [00:09:03] Speaker 03: This is not DIFAN. [00:09:05] Speaker 00: Well, we think it is because the DIFAN patent had an earlier priority date. [00:09:12] Speaker 00: So any software that existed at the time of the DIFAN patent that would allow you to display anything whatsoever was also available in the prior art for this patent, which was invented later. [00:09:27] Speaker 01: Did you present evidence to that effect to the district court judge? [00:09:32] Speaker 01: Of the different dates of the... And we know that about prior art processors, what the word means. [00:09:39] Speaker 01: Is there any dictionary definitions? [00:09:41] Speaker 01: Is there any expert testimony? [00:09:43] Speaker 01: Is there prior art [00:09:45] Speaker 01: that might talk about what a processor is? [00:09:47] Speaker 01: Do you have anything like that? [00:09:49] Speaker 00: Neither side presented expert testimony. [00:09:51] Speaker 00: We presented evidence from the specification that showed it was structural. [00:10:01] Speaker 00: We also, on appeal, identified additional sections of the specification. [00:10:11] Speaker 03: You're saying that a processor can be software, hardware, [00:10:15] Speaker 03: That sounds to me so general and vague that it amounts to means. [00:10:22] Speaker 03: Means without structure. [00:10:24] Speaker 00: But then you'd have to ignore the section where it says the processor can be implemented with these particular structures. [00:10:36] Speaker 00: And references to computer program instructions code can be in firmware. [00:10:45] Speaker 00: It's really getting to how you implement any software that would be used in association with the process. [00:11:00] Speaker 00: Because we admit that a processor needs to be programmed in order to operate. [00:11:05] Speaker 01: Can I ask you a different question, which is assuming momentarily that we determine that [00:11:14] Speaker 01: the district court got it right that this is means plus function. [00:11:20] Speaker 01: Where did you preserve your argument that the claims aren't indefinite, even if in means plus function format, because the specification discloses corresponding structure? [00:11:29] Speaker 01: And specifically, where did you say what your proposed corresponding structure is? [00:11:36] Speaker 01: What did you identify as the corresponding structure? [00:11:39] Speaker 00: Well, because I think everybody agreed this is a computer-implemented invention if 112.6 applies. [00:11:51] Speaker 00: So it would be the algorithm. [00:11:54] Speaker 01: Where am I going to find that? [00:11:56] Speaker 01: I'll be honest with you. [00:11:57] Speaker 01: I don't think you identified the corresponding structure to the dish record. [00:12:01] Speaker 01: I think you just asserted that this is in means plus function format. [00:12:05] Speaker 01: And then in the next step of if it were in means plus function format, [00:12:10] Speaker 01: you know, identifying what your proposed claim construction would be, would be to identify the corresponding structure. [00:12:17] Speaker 01: And then, of course, the claim construction is that that term means that corresponding structure plus its equivalents that will perform the claimed function. [00:12:25] Speaker 01: But I don't see that in your briefing. [00:12:28] Speaker 00: I think that our position was, at the district court, that it comes from the weird [00:12:35] Speaker 00: sequencing of the, you know, that we had to go first even though we didn't have the burden of proof. [00:12:45] Speaker 00: But I think our position was that they never, they didn't meet their burden to show that 1-12-6 applied. [00:12:55] Speaker 03: Counsel, you're well into your rebuttal time. [00:12:57] Speaker 03: You can continue or save it. [00:12:59] Speaker 00: I'll save the rest of my time. [00:13:00] Speaker 00: Thank you, Your Honors. [00:13:01] Speaker 03: Mr. Mayorgauss. [00:13:05] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:13:07] Speaker 02: After evaluating the parties' arguments and examining the intrinsic evidence, including WSOU's own citations, the District Court correctly held that the term processor configured to provide a preemptive user output is subject to 112-6 and that the specification fails to disclose any corresponding algorithms for performing the recited function. [00:13:31] Speaker 01: Counsel, there are a number of cases where courts have said, [00:13:34] Speaker 01: that the word processor for doing something isn't always in means plus function format. [00:13:40] Speaker 01: There are cases where, in particular circumstances, it was found not to be in means plus function format. [00:13:46] Speaker 01: What makes this case special that you think the word processor configured for? [00:13:51] Speaker 01: What about that language specifically makes this case different than those other cases? [00:13:56] Speaker 02: So I'd like to answer in two parts. [00:13:57] Speaker 02: First, as Your Honor points out, there is no categorical rule one way or another for processor. [00:14:02] Speaker 02: It depends on the particular context [00:14:04] Speaker 02: how it's used in intrinsic evidence. [00:14:06] Speaker 02: And in this case, as the district court found, and your honor pointed out, it's column 13, line six through 21, where the patent itself explains that in the context of the 045 patent, the term processor is broadly referred to as anything that can be implemented in software, in hardware, in firmware, or any combination thereof, and presented with similar circumstances. [00:14:32] Speaker 02: and similar evidence in Williamson, Egenera, and Bosch, this court found that the disputed limitation triggered section 112-6, given how broadly and generally it was described. [00:14:44] Speaker 04: But aren't all those things that are listed in column 13 just alternative types of structure? [00:14:54] Speaker 04: I mean, the software, the firmware, the hardware, [00:14:59] Speaker 04: I don't know, computer engineers will tell you that software and hardware are the same. [00:15:04] Speaker 04: Aren't those just different variations on the theme? [00:15:07] Speaker 04: And it's not so broad that it covers everything under the sun, because it only covers those things that perform the function recited in the claim. [00:15:18] Speaker 02: Well, Your Honor, I think here it makes clear that it is very broad. [00:15:21] Speaker 02: The discussion of hardware, firmware, software is not limiting. [00:15:26] Speaker 02: In fact, it's expansive, and it says yes. [00:15:29] Speaker 02: These three things refer to anything that can perform the recited function. [00:15:33] Speaker 04: But that's just describing the structure. [00:15:36] Speaker 04: At least that's what your adversary would argue, I suspect. [00:15:41] Speaker 02: Right. [00:15:41] Speaker 02: But the problem, I think, is that is not structured. [00:15:43] Speaker 02: That is a broad category of anything whatsoever that could perform various functions. [00:15:49] Speaker 02: And it is in no circumstances that Section 112-6 applies, as this Court has explained in cases such as Williamson and Egenera, [00:15:57] Speaker 02: What animates the purpose of Section 112-6 is to avoid the problem of a patentee seeking to engage in purely functional claiming while trying to avoid or circumvent Section 112-6. [00:16:09] Speaker 02: And again, in cases such as Williamson and Egenera and Bosch. [00:16:14] Speaker 04: Williamson talked about a module. [00:16:17] Speaker 04: Is a processor somewhat different than module, just looking at those words themselves? [00:16:23] Speaker 02: In the abstract, yes, but not how they're used, not how processor is used in the specification here, in this context. [00:16:30] Speaker 02: Because in the 045 patent, as Judge Stoll pointed out, I think in Columns 13, line 6 through 21, it says hardware, software, firmware. [00:16:38] Speaker 02: And in Williamson, this court found that Section 112-6 applied because the term module was used as a general description for software or hardware that performed the specified function. [00:16:50] Speaker 02: This case is really on [00:16:52] Speaker 02: analogous to that. [00:16:53] Speaker 02: And similarly in a genera, this court applied section one 12 six, because the term logic to modify as, as it was used in that context and the evidence showed that that term encompassed software, firmware circuitry, or any combination thereof to refer to a general category of whatever could perform the function. [00:17:14] Speaker 04: And how should the, how should the patentee have recited [00:17:20] Speaker 04: this limitation for a processor to avoid 112? [00:17:27] Speaker 02: I think one of the possibilities would have been to claim a specific type of processor. [00:17:33] Speaker 02: That would perhaps connote structure. [00:17:37] Speaker 04: You made the argument that, well, if you had said program, that might have been different. [00:17:44] Speaker 04: Is that your position? [00:17:46] Speaker 02: No, I don't think so. [00:17:47] Speaker 02: I think if they were specific in terms of what type of processor, [00:17:50] Speaker 02: And in addition, even- Does it matter? [00:17:53] Speaker 02: Yes, because the inquiry is, does the claim language connote sufficient structure to perform the recited function? [00:18:03] Speaker 03: Was it necessary for them to have disclosed an algorithm? [00:18:10] Speaker 02: Certainly for step two, if it is a means plus function limitation, it requires an algorithm. [00:18:16] Speaker 02: I'm sorry, Aaron, go ahead. [00:18:19] Speaker 01: Just want to point out- [00:18:20] Speaker 01: Do all means plus function limitations require an algorithm? [00:18:26] Speaker 00: Not all. [00:18:26] Speaker 01: Obviously, if it's hardware, does it really need to have? [00:18:29] Speaker 01: What if it was a microprocessor? [00:18:30] Speaker 01: What if the only corresponding structure was a microprocessor? [00:18:33] Speaker 01: Of course, it wouldn't require an algorithm, would it? [00:18:35] Speaker 02: Well, in this case, actually, even if the claim said microprocessor instead of processor, there's no dispute that what is necessary to perform a function. [00:18:45] Speaker 01: But what if what was disclosed in this specification was a microprocessor? [00:18:48] Speaker 02: I'm sorry? [00:18:49] Speaker 01: If the corresponding structure in the specification was some sort of hardware, like a microprocessor, would you still think that you needed to have an algorithm? [00:19:01] Speaker 02: I think it would depend on the specification because I'm pausing because under 112.6, if it's a general purpose computer or a microprocessor that requires programming in and of itself, then yes, we would require an algorithm. [00:19:13] Speaker 02: And as counsel points out, the processor here alone is inadequate to perform the claim function. [00:19:20] Speaker 02: What it requires, there's no dispute, is programming. [00:19:23] Speaker 02: And this programming is unspecified. [00:19:26] Speaker 02: It's not recited in the claim language, and it's not disclosed in the specification. [00:19:30] Speaker 01: I didn't mean to hijack your answer. [00:19:34] Speaker 01: No, no, no. [00:19:34] Speaker 02: I'm sorry. [00:19:35] Speaker 02: Did I answer your question, Judge Aline? [00:19:37] Speaker 04: Yeah, I think so. [00:19:37] Speaker 04: I've got another question. [00:19:38] Speaker 04: The claim says a process are configured to move, et cetera, et cetera. [00:19:49] Speaker 04: You argued in your brief while it's missing the programming. [00:19:52] Speaker 04: But in this context, doesn't Configure2 mean the same thing as program? [00:19:59] Speaker 04: I mean, how else do you implement a processor, which is a software-based concept without some sort of program? [00:20:12] Speaker 02: I'd like to answer that in two parts. [00:20:13] Speaker 02: Yes, I think Configure2 calls out for programming. [00:20:16] Speaker 02: It requires programming. [00:20:17] Speaker 02: There's no dispute about that. [00:20:19] Speaker 02: This court's precedent, I believe, in cases such as Rain and others addressed in our brief, made clear that configure to, in and of itself, is not structural. [00:20:27] Speaker 02: It is purely functional. [00:20:28] Speaker 02: And it requires something. [00:20:30] Speaker 02: It requires some sort of structural. [00:20:31] Speaker 04: You know, all those cases, you get to read them in context. [00:20:34] Speaker 02: Of course. [00:20:34] Speaker 04: And I hear your argument. [00:20:36] Speaker 04: And you can find that language in those cases. [00:20:39] Speaker 04: But these are all sort of contextually based. [00:20:43] Speaker 04: And here, it's a processor, which is inherently a software kind of thing. [00:20:49] Speaker 04: I don't know how else you implement a processor other than programs, so I think in this context, it seems to me I'm having a hard time saying this is not equivalent to saying a processor program to do X, Y, and Z. It may be, Your Honor. [00:21:07] Speaker 02: I don't think it ultimately [00:21:10] Speaker 02: changes the analysis or as a basis for disturbing the court's reasoning, because even if it is a processor programmed to and is subject to 126, what we are still missing is any corresponding algorithm or structure for performing the recited function. [00:21:24] Speaker 04: So that's step two. [00:21:26] Speaker 04: That is step two. [00:21:27] Speaker 04: Let me ask you another question. [00:21:30] Speaker 04: In the electronics arts, we frequently see claims that talk about an oscillator connected to an amplifier connected to a modulator. [00:21:40] Speaker 04: In a sense, these are all functional words, an oscillator, an amplifier, a modulator. [00:21:49] Speaker 04: And we would see a claim that would say, for example, an oscillator configured to generate a signal when turned on. [00:21:58] Speaker 04: I don't think anybody would say that's a 112.6 means plus function clause. [00:22:04] Speaker 04: Why is this so different? [00:22:06] Speaker 02: I think for two reasons. [00:22:08] Speaker 02: Processor here is much more broader than oscillator. [00:22:11] Speaker 04: And again, as your honor pointed out- Is the breadth not the question, is it? [00:22:15] Speaker 02: Well, it is in this context, as your honor pointed out. [00:22:18] Speaker 02: It's context dependent. [00:22:19] Speaker 02: And here, in the context of the 045 patent, the term processor at column 13, lines 6 through 21, is really anything and everything that can perform a function. [00:22:28] Speaker 02: So to use your example, your honor, they said oscillator in the claims. [00:22:32] Speaker 02: and then expanded the term oscillator in the specification to be anything and everything that could perform a recited function, it would be analogous to this case here. [00:22:46] Speaker 02: And I'd just like to make two more quick points. [00:22:49] Speaker 02: I know DIFAN came up, not VVPP specifically, so I'll wait for that, but DIFAN, as you're honest point out, is fundamentally different from the present case in that what animated DIFAN [00:23:00] Speaker 02: was that there was unchallenged, unrebutted testimony from defendant's expert, Dr. Goldberg, that explained why there was a corresponding structure. [00:23:09] Speaker 02: There is no such evidence here. [00:23:12] Speaker 02: Unless Your Honors have any questions, I would ask that the district court's judgment be affirmed. [00:23:17] Speaker 03: Thank you. [00:23:18] Speaker 03: Thank you, Your Honor. [00:23:19] Speaker 03: Mr. Mayor Goyes, Mr. Cummings has some rebuttal time. [00:23:24] Speaker 00: Just a few items, Your Honors. [00:23:26] Speaker 00: First of all, getting back to the question about the top of column 14, breadth does not mean that it's indefinite. [00:23:36] Speaker 00: The software can be a structure as zero-click and Diffin-held. [00:23:45] Speaker 00: Firmware is another type of software. [00:23:48] Speaker 00: And so really all the top of column 14 is saying is that [00:23:55] Speaker 00: it can be implemented with these structures, including with different types of software structures. [00:24:02] Speaker 00: And then getting back to the briefing below, because of the burden, we didn't have to present any evidence at all. [00:24:14] Speaker 01: Oh, because of the burden from Williamson [00:24:18] Speaker 00: Because they had the burden to prove that 112-6 applied. [00:24:26] Speaker 00: And there's cases that say... I understand what you're saying. [00:24:31] Speaker 01: But what do you do in a circumstance like this where it is just a claim construction, right? [00:24:37] Speaker 01: They're arguing that your claim is indefinite. [00:24:40] Speaker 01: They've said 112-6 applies. [00:24:43] Speaker 01: And in this circumstance where you haven't identified what the corresponding structure would be in the event [00:24:49] Speaker 01: that the court found that 112-6 actually applied, how is the district court to evaluate your position on step two if the district court finds that, in fact, it is a means plus motion format? [00:25:02] Speaker 00: Well, since the district court [00:25:09] Speaker 00: I guess the trouble that I'm having is that we explained to the district court why it was structural, and we didn't feel like we needed to go any further because they hadn't met their burden. [00:25:29] Speaker 00: And then just one last item, this idea that [00:25:36] Speaker 00: The patent had unclaimed and unspecified programming. [00:25:43] Speaker 00: Well, DIFAN and ZeroClick didn't include the source code in the patent either, but the court still found that the code there was structural. [00:25:57] Speaker 00: Google doesn't explain why in this instance the code has to be specified and claimed. [00:26:09] Speaker 00: But even in their argument today, they didn't explain the essential inquiry about whether a skilled artisan would understand processor to be structural. [00:26:24] Speaker 00: It's not in their briefs below. [00:26:26] Speaker 00: It's not in their brief here. [00:26:27] Speaker 00: It's not in their argument today. [00:26:29] Speaker 00: They didn't meet their burden. [00:26:31] Speaker 00: So we ask the court to reverse the judgment of the district court. [00:26:36] Speaker 00: Thank you. [00:26:37] Speaker 03: Thank you, counsel. [00:26:38] Speaker 03: The case is submitted.